KEITH EUGENE BROWN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in giving a jury instruction on flight over the defendant's objection, requiring reversal of the conviction.
The defendant was convicted of grand theft of a motor vehicle. He appealed, arguing the trial court improperly instructed the jury on flight and that …
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PER CURIAM.
The appellant, defendant in the trial court, seeks review of his conviction and sentence to ten years imprisonment with a minimum mandatory of five years plus $1,800.00 restitution. The sentence was entered pursuant to a jury verdict which found the defendant guilty of grand theft of a motor vehicle.
He alleges two grounds for reversal: (1) the trial court erred in giving a jury instruction on flight over the defendant’s timely objection, contrary to the holding in Fenelon v. State, 594 So. 2d 292 (Fla.1992), (2) the trial court erred in sentencing the defendant as a violent felony offender when the 1989 amendment to § 775.084, Florida Statutes (1989) is unconstitutional.
Turning to the first point we must find for the appellant. Commensurate with the holding of the Supreme Court in Smith v. State, 598 So. 2d 1063 (Fla.1992), the defendant is entitled to the benefit of Fenelon, which disapproved of a jury instruction on flight.1 The defendant having properly objected to the flight instruction, has preserved the issue for appellate review, Smith. Therefore, we reverse the defendant’s conviction and remand the cause for a new trial. Because of this finding it is unnecessary for us to reach the remaining point on appeal.
Reversed and remanded.
. In fairness to the trial court, we must point out that when the flight instruction was given the trial judge could not have been aware of the ruling in Fenelon, which was rendered some seven months after the trial court gave the complained of charge.
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Citator
Cited By
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Kelvin v. State, 610 So. 2d 1359 (Fla. 1st DCA 1992)…ing must be applied retrospectively because Fenelon was decided during the time that Kelvin’s conviction was pending on appeal. See Smith v. State, 598 So. 2d 1063 (Fla.1992). Accord Keys v. State, 606 So. 2d 669 (Fla. 1st DCA 1992); Brown v. State, 609 So. 2d 656 (Fla. 3d DCA 1992).4 We reverse as well as to issue 8, pertaining to the court’s erroneous admission of expert testimony. The court admitted into evidence a photograph of a sofa located in the apartment where the shooting occurred, showing long dow…
Authorities Cited
- Rhoda Smith v. State, 598 So. 2d 1063 (Fla. 1992)
- King Anthony Green v. State, 594 So. 2d 292 (Fla. 1992)